FACTORS OF RELEVANCE IN THE DELIMITATION BETWEEN THE TERRITORIAL SEAS OF THE NETHERLANDS AND GERMANY
Master Thesis
Steffen Dewina Studentnr. 331593
JUR-3910
LL.M. in the Law of the Sea University of Tromsø
Faculty of Law Year 2011/2012
TABLE OF CONTENT
Part I: Introduction
Chapter 1: Introduction 3
Chapter 2: Sources and Methods 5
Chapter 3: The Dispute 5
Part II: Positions
Chapter 4: Historic Developments 12
Chapter 5: National Positions 14
Part III: Delimitation
Chapter 6: Baselines 18
Chapter 7: Equidistance 22
Chapter 8: Historic Title 24
Chapter 9: Special Circumstances 29
Part IV: Analysis
Chapter 10: Legal Analysis 37
Chapter 11: Dispute Settlement 42
Conclusion 43
Part V: Bibliography
Literature, Treaties, Case Law and Figures 45
Part I
Chapter 1: Introduction
The Netherlands and Germany have not been able to agree on the course of the maritime border between their territorial seas. The two states are not the only neighbouring countries that seem to fail settling these issues by concluding a delimitation agreement. Unlike most other states disagreeing on the delimitation between their territorial seas, the Netherlands and Germany have previously succeeded in delimiting maritime zones other than the territorial seas.1 The reason both states cannot agree to delimit their territorial seas may be found in the special nature of the international law applicable in delimitation between territorial seas. The equidistance-special/relevant circumstances rule has been applied in most cases of maritime delimitation. International law applicable to delimitation between territorial seas does, however, also allow for special title to affect the boundary course.2 The Netherlands and Germany seem not to agree on the weight to be given to the claim made by Germany that an historic title exists and that this historic title is applicable to parts of the territorial seas. The described dispute is not new: it has been tried without success to negotiate a delimitation line since the early 20th century.3
A recent construction of a wind energy park in the disputed territorial seas is the particular reason that the conflict has become relevant again. The construction of a wind energy park called “Riffgat” started in June 2012 by ramming the first 30 foundation piles or “monopiles”
into the ground at a water depth of 40 meters. The building happens under licensing by Germany and takes place just 8 nautical miles (from now on: miles) northwest of the German island Borkum. The construction site is also just north and relatively close to the shores of the Netherlands. It is planned that by summer 2013 approximately 30 wind turbines start producing enough energy for around 120.000 households in Germany.4
1 Dinter, S. van. De zeegrens ten noorden van het Eems-Dollardgebied, Integraal Beheer Noordzee: Nieuwsbrief.
Vol. 13 (2011), p. 10.
2 United Nations Convention on the Law of the Sea, Montego Bay 10 December, 1982, 21 ILM 1245 (1982), Article 15.
3 Treviranus, H. D., Der deutsch-niederländische Ems-Dollart-Vertrag. Heidelberg, (Max-Planck-Institut für Ausländisches Öffentliches Recht und Völkerrecht) 1963, p. 540.
4 EWE startet Bau von “Riffgat”. THB, 16-06-2012. http://www.thb.info/news/single-view/id/ewe-startet-bau- von-windpark.html (last visited on 15 August 2012).
The erection of this wind energy park has its controversies. The Netherlands and Germany are still in dispute on whose territory the wind energy park are actually being built. The Dutch government claims that the park is, at least partly, located within Dutch territorial waters and that therefore also licensing by the Netherlands is required. In the view of the German government the construction zone falls completely within Germany’s jurisdiction and further discussion is not needed.5 The absence of an official border between the territorial seas of both states makes it impossible to ascertain in which territorial sea the wind energy park is built. 6
Figure 1: portraying the location of the wind energy park “Riffgat” in the territorial sea.7
5 Bruin, A. de. Windmolenpark in Nederlands of Duits water? Visserijnieuws. Vol. 32 (2012), pp. 25-28.
6 Eems-Dollardverdrag/Ems-Dollart-Vertrag (1960), Article 46.
7 Title over figure: Eemsmonding zorgt al jaren voor grensconflict (English: Ems mouth causing border conflict for many years). In: Grensruzie met Duitsers over windmolenpark. Fibronot. 11-08-2011.
http://fibronot.nl/nieuwsartikel257-2011-grensruzie-met-duitsers-over-windmolenpark/ (last visited on 15 August 2012).
Chapter 2: Sources and Methods
This thesis will analyse the origins of and relevant factors to the delimitation dispute. The main hypothesis to be answered is: what factors can be identified as relevant in order to achieve a delimitation between the territorial seas of the Netherlands and Germany in accordance with Article 15 of the United Nations Convention on the Law of the Sea (from now on: LOS Convention)? In order to answer this question this thesis gives the necessary background information to understand the dispute in Part I. The national claims and historic developments will then be reviewed in Part II and, subsequently, the relevant baselines, line of equidistance, historic title and special circumstances applicable to the delimitation of territorial seas will be analysed in Part III. Finally, a legal analysis, the possibilities of dispute settlement and a conclusion determine which factors are identified as relevant in achieving an objective delimitation between the territorial seas of the Netherlands and Germany in Part IV.
The research carried out is based on qualitative methods. A relevant bibliography is composed of articles, conventions, jurisprudence and other sources and found in Part V. The bibliography consists of literature in the Dutch, English and German languages. The fact that not much research has been carried out on this specific topic made it difficult to find the right sources. However, it also indicated and emphasised the need for research on the dispute on the delimitation of the territorial seas between the Netherlands and Germany.
Chapter 3: The Dispute
Geographical description
Several failed negotiations between the Netherlands and Germany on the boundary course in the territorial sea indicate that both neighbours continued to disagree on the course of the shared borders in the waters adjacent to their coasts. Both states do not want to give in to demands and seem not able to reach an agreement on the delimitation of their territorial sea borders.8 This status quo exists for a long time period and reflects the complexity of the status of the waters in both internal waters and territorial sea around the region called the Ems-
8 Deutsch-Niederländische Nachbarschaft: Grenzkrieg Fällt Aus. TAZ. 23-12-2010. http://www.taz.de/!63337 (last visited on 15 August 2012).
Dollard. The disputed waters are found seawards of the intersection points of the Dutch and German land borders and baselines.
The disputed area starts in the east of the Ems-Dollard, just under Emden. The river Ems, mostly a small and only partly navigable river, widens here into a funnel-shaped delta mouth.
At this point it meets the waters of the Dollard and together they form an estuary flowing into the open sea. From the Ems-Dollard multiple arms find their way through the shallow waters and many the islands of the Wadden Sea into the North Sea. The largest part of the Ems- Dollard has never officially been delimited. The Dollard is an exception: here a partial border exists and 4/5th of its waters belong to the Netherlands.9 The largest part of the Ems-Dollard qualifies as inland or internal waters. Only waters laying seaward of the approximate line of fringe of island Schiermonnikoog and Rottumeroog on the Dutch side and Borkum and Juist on the German side are considered waters falling under the regime of the law of the sea.
Baselines run across this line of fringe of islands to mark the border between internal waters that fall under national law and maritime zones falling under international law.
The maritime zones regulated the LOS Convention, including the part of the disputed territorial sea, start seaward of the baselines, which are formed by connecting the appropriate base points on respectively the Dutch and German side.10 The disputed territorial sea should not be seen as one legal entity. For reasons of historical developments in the law of the sea that will discussed later on, the disputed territorial sea is divided into two separate parts. The first part covers the area between the baseline and the 3-mile line, the historic maximum extent of the territorial sea, and the second part includes the area between the 3-mile line and the 12-mile line, the current maximum extent of the territorial sea. Beyond this outer limit of the territorial sea other maritime zones such as the contiguous zone and Exclusive Economic Zone (from now on: EEZ) start. Delimitation for these maritime zones is undisputed, but they may still be relevant due their adjacency to the territorial sea.
Legal developments
The legal framework within which the Netherlands and Germany form their positions is found in the LOS Convention. Both states are party to this convention and it officially regulates the
9 Treviranus, H. D., p. 536.
10 Treviranus, H. D., p. 537.
“delimitation of the territorial sea between states with opposite or adjacent coasts”.11Article 15 of the convention requires states to delimit on the basis of the principle of equidistance in combination with the median line. It also regulates that in case of historic entitlement the equidistance principle is not the applicable standard to apply. It is true that the equidistance principle forms a general starting point for delimitation, but states are required “where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two states in a way which is at variance therewith”.12 It is however necessary to first understand certain historic developments in the law of the sea before applying Article 15 of the convention. This historical background information can help putting abstract definition into the appropriate context.
To begin with, Germany believes that the disputed waters of the territorial sea should fall under its jurisdiction. Germany believes as well that the internal waters of Ems-Dollard constitute an ordinary river that should fall almost completely under its jurisdiction. The German claim only excludes parts of the Dollard that, according to a bilateral agreement on the Dutch-German land border, fall under Dutch sovereignty. Almost all the other waters of the Ems-Dollard were to fall under German sovereignty. The reasons put forward are mainly based on historic title and historic use.13 The disputed territorial sea is furthermore also considered to fall under territorial jurisdiction. Relevant delimitation would be based on historic title and the boundary should largely run along the Dutch low-water line by following the Dutch shores and low-water levels up until 3 miles from the baseline. Germany proposes its delimitation line from the 3-mile line to the 12-mile outer limit to be running along old continental shelf delimitation lines.
The Netherlands does not agree with the German view. It believes that the boundary line in the internal waters of the Ems-Dollard should follow the thalweg-line, a line based on the thalweg-principle. The thalweg-line is a boundary line between two states that are separated by a watercourse and where this line follows the lowest point of the (main) shipping lane. The line of this shipping lane is denoted as the thalweg of that watercourse. The Netherlands rejects therewith the view that almost the whole Ems-Dollard should fall under German jurisdiction. Delimitation in the territorial sea should be based on the equidistance or median line, derived from the principle of international law in which equidistance is the starting point
11 United Nations Convention on the Law of the Sea (1982), Article 15.
12 Ibid, Article 15.
13 Treviranus, H. D., p. 538.
for delimitation of the territorial sea. Both states should have equal access to the waters in the Dutch view.14 The Netherlands apparently finds the absence of modern bilateral agreements on delimitation of the territorial sea enough reason to disagree with the German claims, which are based on historical title.
After a long period of disagreement both parties came to a status quo agreement in 1929.15 The states guaranteed each other not to make any claims that would affect any future entitlements or otherwise negatively influence the all right so far enjoyed in the Ems-Dollard.
Territorial sovereignty was not discussed any further and remained untouched until the 1960’s. The Netherlands and Germany concluded in 1960 the first of series of agreements called the Ems-Dollard-Treaties.16 An increasing need for cooperation in an area in which legal responsibilities have not always been clear was the main reason for conclusion.17 The treaty was signed in spirit of good neighbourliness and established a legal framework for shared maritime management. It was however explicitly mentioned that provisions of the treaty would not affect bilateral standpoints on the course of the boundaries.18 Both contracting parties reserved their legal positions in this respect.19 The treaty was mainly intended to find pragmatic solutions to and solve problems created by navigational challenges, such as increasing silt, traffic and shipping volumes in the relevant waters.20 The interests of the two Ems-Dollard harbours, Emden in Germany and Delfzijl in the Netherlands, were of great importance.21 The agreement specified the area geographically, laid down rights and duties for both contracting parties and secured cooperation between them.
The Ems-Dollard-Treaty of 1960 covers parts of the internal waters as well as a part of the territorial seas. Its geographical scope is in the territorial sea limited by a 6-meter depth line on the one side and a 3-mile line on the other side. The treaty covers the two Ems watercourses Hubertgat and Westerems, which flow into the territorial sea. Germany finds that almost the whole area governed by the Ems-Dollard-Treaty should belong to its
14 Bruin, A. de, pp. 25-28.
15 Treviranus, H. D, p. 540.
16 Ibid, p. 539.
17 Bruin, A. de, pp. 25-28.
18 Ibid, pp. 25-28.
19 Werners, S.E.. Complicaties bij een grensgeschil, Nederlands Juristen Blad. Vol. 43 (1968) pp. 224-225.
20 Treviranus, H. D, p. 540.
21 Bruin, A. de, pp. 25-28.
territories.22 The Netherlands, on the other hand, bases its position on the thalweg- and equidistance-principles and believes it has the right to approximately half of this area. To regulate the extraction of oil and gas reserves under the soil of the Ems-Dollard another treaty was signed in 1962.23 This treaty covers approximately the same area as the first 1960 treaty.24 The Netherlands and Germany agreed in 1964 on a delimitation of their continental shelves for a limited area beyond the (former) 3-mile outer limit of territorial sea.25 They additionally signed a treaty in 1971 that subsequently would delimit the whole continental shelf beyond the territorial sea.26 It is worth noting that both of the two continental shelf treaties contain a reservation explicitly stating that the continental shelf delimitation does not affect the states’
official positions and rights on the delimitation of the territorial sea.27
Figure 2: portraying the waters included in the Ems-Dollard-Treaty of 1960.28
22 Treviranus, H. D., pp. 541-542.
23 Aanvullende Overeenkomst Eems-Dollardverdrag/Zusatzabkommen Ems-Dollart-Vertrag (1962), Article 2.
24 Het Eems-Dollardverdrag en de aanvullende Overeenkomst. Ministerie van Defensie. 01-07-2012.
http://www.defensie.nl/marine/hydrografie/geodesie_en_getijden/zonegrenzen/noordzee (last visited on 15 August 2012).
25 Verdrag tussen het Koninkrijk der Nederlanden en de Bondsrepubliek Duitsland inzake de zijdelingse begrenzing van het continentale plat in de nabijheid van de kust (1964), Article 1: at that time a 3-mile line.
26 Verdrag tussen het Koninkrijk der Nederlanden en de Bondsrepubliek Duitsland inzake de zijdelingse begrenzing van het continentale plat onder de Noordzee (1971), Article 1.
27 Verdrag tussen het Koninkrijk der Nederlanden en de Bondsrepubliek Duitsland inzake de zijdelingse begrenzing van het continentale plat in de nabijheid van de kust (1964), Article 2(1).
28 Bijlage bij het Eems-Dollardverdrag (English: Attachment to the Ems-Dollard-Treaty), 1960.
http://www.defensie.nl/marine/hydrografie/geodesie_en_getijden/zonegrenzen/noordzee (last visited on 15 August 2012).
Legal claims
The status quo situation between the two states changed after the ratification of the LOS Convention. In 1985, and as reaction to this new international regime, the Netherlands proclaimed an extension of its territorial sea. National legislation incorporated new international legal developments: the LOS Convention had given coastal states the rights to extent the maximum breadth of the territorial sea to 12-mile from the baselines. The Netherlands legislated that, firstly and in accordance with the new international standards, the outer limit of its territorial sea was extended to 12-mile from the baselines and that, secondly, territorial sea delimitation with neighbouring countries was be done based on the principle of equidistance. Consequently, the Netherlands used the equidistance line, which supported its claim in the ‘old’ territorial sea, and prolonged this in the ‘new’ territorial sea to 12-mile from its baselines. Problematically, this proclamation resulted in partially overlapping maritime claims and zones.
However, a part of the territorial sea that was situated between 3 and 12 miles from the baselines and that was now claimed by the Netherlands overlapped with an area of the continental shelf belonging to Germany.29 Germany did also incorporate the recent developments in the law of the sea into its legislation in 1995. It proclaimed an extension of its territorial sea from the former outer limit of 3 miles to the new outer limit of 12 miles from its baselines as well.30 Germany decided to support its proclamation by suggesting that the old continental shelf delimitation lines between 3 and 12 miles were automatically converting into boundary lines between the territorial seas of the two states.
It is important to emphasise the legal difference of the waters in the ‘old’ and ‘new’ territorial seas. The Netherlands and Germany agreed to not agree on delimitation between their territorial seas from the baseline until the 3-mile lines and signed the Ems-Dollard-Treaty in 1960 to deal with the practicalities related to the absent territorial sea delimitation. The treaty laid down rights and duties of both states and gave clear limits of its jurisdiction. Both states have committed themselves to not undertake action in a way that would hamper the current status quo. Even though ‘new’ territorial sea beyond the 3-mile line falls outside of the scope
29 Bruin, A. de, pp. 25-28.
30 Dinter, S. van, p. 10.
of the treaty regulating the Ems-Dollard, no agreement has been concluded that could regulate problems arising in this part of the territorial sea. Furthermore, whereas the territorial sea delimitation landwards of the 3-mile line has been disputed over for a long period of time, the dispute over the delimitation between the territorial seas outward of the 3-mile line has been relatively recent.
Negotiations between the Netherlands and Germany started again in 1988 after the extension of the territorial sea. They did not result in a satisfying solution and were stopped again in 1992.31 It was not seen as very necessary to come to a delimitation agreement and due to frequent annexes to the treaties regulating the Ems-Dollard its regulatory power did not become outdated. Because not many activities causing possible problems occurred beyond the 3-mile lines it was also not considered really necessary to find a definite answer to the delimitation dispute. Naturally, this changed after Germany published its plans for the wind energy park in 2001. New negotiations started in 2005, but again did not lead to a positive outcome. Germany eventually granted its licenses for the wind energy park in 2010 after which the Netherlands objected to Germany’s actions.32 The Netherlands started to put more emphasis on the importance to first solve the overlapping claims by means of negotiations before undertaking action in the disputed area. It is said that the Netherlands objected to the licensing of the wind energy park not because their position on the wind energy park is negative, but because non-objection could have been interpreted as an acceptance of German claims over the disputed territorial sea area.33
New attempts to negotiate recently took place in 2010 and 2011.34 New negotiations did not result in a final solution for the current situation. Nevertheless, the construction of the wind energy park has now officially been started in June 2012 and its foundation in the form of underwater piles is being built.35 Because the wind energy park is constructed in the area between the 3-mile and 12-mile line it does not fall directly under the provisions of the treaties regulating the territorial sea of the Ems-Dollard. The question remains whether the wind energy park construction could be considered as a legal breach. States are required to
31 Dinter, S. van, p. 10.
32 Ibid, p. 10.
33 Deutsch-Niederländische Nachbarschaft: Grenzkrieg Fällt Aus. TAZ. 23-12-2010. http://www.taz.de/!63337 (last visited on 15 August 2012).
34 Dinter, S. van, p. 10.
35 EWE startet Bau von “Riffgat”. THB, 16-06-2012. http://www.thb.info/news/single-view/id/ewe-startet-bau- von-windpark.html (last visited on 15 August 2012).
settle their transnational disputes by peaceful means36 and to make effort to settle maritime disputes through negotiation.37 There are no requirements for the maximum length of the negotiations, but they are required to be serious and in good faith.38 In the provisions of LOS Convention applicable to the EEZ, for example, it is explicitly prohibited to act in a way that could jeopardise or hamper the reaching of a final agreement between two parties in delimitation.39 A similar provision for the territorial sea is absent.
The wind energy park construction could obstruct the reaching of a final agreement and it thereby is hard to argue that negotiations continue to be ‘serious and in good faith’. The LOS Convention requires states to cooperate toward reaching agreement regarding delimitation disputes in the EEZ.40 If cooperation fails, states are required to make every effort to first enter into practical provisional arrangements and then settle their dispute in accordance with the provisions under the Part XV of the convention.41 A similar provision for the territorial sea is absent, but other legal principles of dispute settlement and negotiation apply. These principles include good faith, listening to the other state, being prepared to move from an opening position and to act peacefully.42 With the construction of the wind energy park it is important to assess whether Germany does not violate these principles. In absence of an agreement states are normally not entitled to extend their territorial seas beyond the median equidistance line.43 Germany extended its territorial sea beyond this line and justifies this extension by reasoning of historic title or other special circumstances. The seriousness and good faith of the bilateral negations are however to be seen in light of the construction and licensing beyond the median line.
Part II: Positions
Chapter 4: Historic Developments
The historic title put forward by Germany to support its position to require delimitation in the territorial sea at variance with the median line, is inherited from a time period in which the
36 Rothwell, D.R., Stephens, T., The International Law of the Sea, 1st edition. Portland, (Hart Publishing) 2010, p. 440 and United Nations Convention on the Law of the Sea (1982), Article 279.
37 United Nations Convention on the Law of the Sea (1982), Article 283.
38 Rothwell D.R., p. 449.
39 United Nations Convention on the Law of the Sea (1982), Article 74(3).
40 Ibid, Article 74(3).
41 Ibid, Article 74(2).
42 The Charter of the United Nations (1945), Article 33(1).
43 United Nations Convention on the Law of the Sea (1982), Article 15.
modern concept of territorial sea did yet not exist. No clear difference between the internal waters and territorial sea of the Ems-Dollard existed in the time that historic titles acquired their legal status. For this reason it is rather difficult to attribute the historic title only to one of the two areas. Nevertheless, the suggested historic title appears to be applicable for the waters on both sides of the modern baselines. It has been said that the arguments behind the lawful acquisition of the waters appear to be quite solid. Germany claims that is the legal successor of an historic title that would give Germany the right to Ems-Dollard. Research indicates that this historic title would still be of legal relevance in the present modern time indeed.44 Parts of what nowadays constitute the internal waters and territorial seas of the Ems-Dollard were first added in the second half the 15th century to the territories of Ostfriesland, a former medieval state at present day located within German territory.45
It is worth mentioning that the legality of this acquisition act has not been undisputed at historic times. It was not until 1558 that Ostfriesland would formally establish its sovereignty over the waters.46 In that same historic period the Netherlands officially belonged to the German Empire, a historic federal state to which also Ostfriesland belonged. It was actually until 1648 that the Ems-Dollard fell completely under the sovereignty of one state. With the Westphalian peace in 1648 the Netherlands became an official state and the Ems-Dollard formally formed a border between two sovereign states.47 The historic title has first been passed over from Ostfriesland to Prussia in 1744, then from Prussia to the Kingdom of Hannover in 1815 and finally from the Kingdom of Hannover to the North German Confederation in 1863.48 This North German Confederation was the first German modern nation state and was the basis for the later German Empire, Weimar Republic and modern Germany.
The concept of the nation state gained popularity during the 19th century. The Congress of Vienna in 1815 focussed especially on the sovereignty of nation states in Europe. It was found that sovereign borders were an important factor in the process of state building. In that Zeitgeist the Congress of Vienna confirmed the German sovereignty over the waters of the
44 Broek, J. van den. Groningen en de voorbijvaart van Emden. In: Groningen een stad apart (1st edition). Assen, (Koninklijke Van Gorcum BV) 2007. pp. 471-492.
45 Ibid, pp. 471-492: exact official date not known, but either in 1454, 1464 or 1495.
46 Ibid, p. 474.
47 Ibid, p. 482.
48 Ibid, p. 482.
Ems-Dollard.49 The Netherlands was initially given the sovereign right over a strip on the western shore of the Ems-Dollard with the extent of a distance one could throw a horseshoe.
Not much later this distance has been specified as and fixed at the low water level line.50
Further treaties in the 19th century did not change the course of the boundary. Germany started to unilaterally set out its rights and duties in respect to the creation and maintenance of the navigable channels. The fact that the Netherlands did not, or just weakly, react to these declarations arguably reconfirms the German standpoint of exclusive sovereignty. In the early 20th century the Germans also continued harbour construction and maintenance works in the Ems-Dollard. These works were partly executed in the waters that were located on the Dutch side of the thalweg- and equidistance-lines. In the 19th and early 20th century a combination of unilateral actions undertaken by Germany on the one hand and the absence of official reactions by the Netherlands on the other hand slowly strengthened the German position on claiming exclusive sovereignty based on historic title.51
Lastly, and in relation to the territorial beyond the 3-mile line, official maps published by Germany indicate that Germany claims a boundary line between the territorial seas beyond the 3-mile line that runs along the old EEZ52 and continental shelf boundary lines.53 The continental shelf boundaries were agreed upon by the two states in respectively 1964 and 1971, and the territorial sea delimitation lines suggested by Germany exactly coincide with these old continental shelf delimitation lines. These old EEZ and continental shelf boundaries fell within the area at present claimed by the Netherlands as its territorial sea. In order to give an analysis of the argumentation used by both states, there are some additional steps to be taken. First of all, it is necessary to explain the positions taken by both parties a bit further.
Chapter 5: National Positions
Three maritime areas
49 Broek, J. van den, p. 482.
50 Ibid, p. 482.
51 Ibid, pp. 482-483.
52 Proclamation Exclusive Fisheries Zone in 1977; from 2000 onward Exclusive Economic Zone.
53 Area covered in the German Bight. Bundesamt für Seeschifffahrt und Hydrographie. 25-01-2011.
http://www.bsh.de/en/Marine_data/Hydrographic_surveys_and_wreck_search/Hydrographic_surveys/e_awz_n.j sp (last visited on 15 August 2012).
In getting an objective and complete overview of the specifics of the dispute it is important to understand the reasoning behind the states’ positions. From a legal perspective these positions are best to be dealt with separately for three different and distinctive maritime areas. The first maritime area covers the waters that are considered internal waters and are landward of the baseline. The second maritime area includes part of the waters that are considered territorial sea and are seaward of the baselines extending until the 3-mile line. The third maritime area encloses a part the waters that are considered territorial sea and are starting beyond the parts the Ems-Dollard-Treaty applies to or at the 3-mile line. This third area extends up until the outer limit of the territorial sea and therefore ends the 12-mile line. For the delimitation of the territorial sea all three maritime areas are relevant. Delimitation of internal waters is necessary to establish the point of intersection of land borders between the Netherlands and Germany with the baseline. A precise starting point for territorial sea delimitation would thereby be established.
Dutch position
The Dutch position on the course of the border is quite straightforward for all the three applicable maritime areas of the Ems-Dollard. The Netherlands believes that delimitation of the internal waters should be based on the thalweg-principle and delimitation of the whole territorial sea should be based on the prolonged equidistance line, which should not make any distinctions between the waters before and beyond the 3-mile line in the territorial sea. The Netherlands finds that the internal waters of the Ems-Dollard do not fall under German sovereignty and are therefore still open for an equitable delimitation.54 The internal waters were to be delimited in a manner of which state practice has shown is to be considered accepted in internal waters and rivers delimitation disputes. The delimitation of internal water concerns a land border and the Netherlands argues that the delimitation standard to apply is the thalweg-principle, a principle accepted in international law and in which the boundary follows the line of lowest points of the (main) navigable watercourse.
In addition, the Netherlands believes that delimitation of the territorial sea should start at the location where the thalweg-line meets the baselines. This delimitation should be completely based on the equidistance principle. The Netherlands is obliged by their national legislation to establish the boundaries of its territorial sea together and in agreement with neighbouring
54 Dinter, S. van, p. 10.
states. The Netherlands argues that the territorial sea should be delimited based on the principle equidistance in absence of such an agreement with neighbouring states. In this standpoint the Dutch view coincides with the general principles for territorial sea delimitation under international law.55 Equidistance is a principle in which the median is used to form a boundary line, which runs along a line that is on both sides of the line on the exact same distance to the baselines of both states.56 The Netherlands claim a territorial sea boundary line that follows this equidistance line for the whole 12 miles until the point where it would connect to the starting point of the boundary line of the Dutch EEZ, which follows the continental shelf delimitation lines in the maritime zones beyond the 12-mile line.57
German position
The German position a little bit more complicated on the courses of the boundaries for these three maritime areas of the Ems-Dollard. The German position is based on the following argumentation: in the case the Dutch reasoning would be followed, thus emphasising the absence of an recent agreement or treaty on maritime delimitation between both neighbouring states, this can still not lead to the application and justification of the thalweg-principle in the internal waters nor equidistance principle in territorial sea-waters. Both principles delimitation would be subordinate to the special entitlements Germany would enjoy based on historical titles and/or special circumstances. Germany says it acquired the waters by inheritance from territorial predecessors and long and continuous, and uninterrupted and unhampered exercise of these special entitlements would support its position.58 What Germany has not made very clear is whether it claims the historic title to be relevant for the whole territorial sea or just for the waters between the baselines and the 3-mile line, the historic outer limit of the territorial sea. It seems to be the most logic to give relevance to the historic title in the area within the limits of the historic outer limit of the territorial sea only, since historic titles related to the territorial sea are less likely to have developed in areas that historically were not known to be territorial seas.
Relevant for the strength of Germany’s position is that the Netherlands does not oppose the supremacy of historic title and special circumstances in territorial sea delimitation. The
55 United Nations Convention on the Law of the Sea (1982), Article 15.
56 Dinter, S. van, p. 10.
57 Besluit grenzen Nederlandse exclusieve economische zone (2000), Article 1(b).
58 Khan, D.E., Die deutschen Staatsgrenzen: Rechtshistorische Grundlagen und offene Rechtsfragen, 1st Edition.
Tübingen, (Mohr Siebeck Gmbh & Co. K) 2004, p. 423.
Netherlands argues that Germany failed to support its historic title by sufficient evidence.59 As mentioned earlier, the LOS Convention indeed regulates that the equidistance principle is not directly the applicable standard to apply in the delimitation between two territorial seas in case of historic entitlement. It is true that the equidistance principle forms a general starting point of delimitation, but states are required “where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two states in a way which is at variance therewith”.60
Similarly, the thalweg-principle established itself throughout the 19th and early 20th century as part of customary international law. It was found to be applicable for border delimitation in internal waters that were considered navigable. Former state practice and international jurisprudence have always reinforced the supremacy of “historic title and other vested rights over the median or equidistance line principle, as well as over all other rules”61 thus including the thalweg-principle.62 Hugo Grotius argued that in two situations thalweg should not be followed: firstly, in the case a river would fall under the effective occupation by one of the two adjacent states or, secondly, if an agreement regulating delimitation was already concluded. Germany justifies its claim, firstly, by reasoning historic entitlement on lawful acquisition, secondly, based on uninterrupted and long-lasting possession and, thirdly, by effective occupation.63
Analysing the Dutch and German standpoints helps in understanding the complexities of this dispute. It also creates the possibility to check their standpoint against any legal duties, rights, obligations, and other relevant factors influencing the strengths and/or weaknesses of these positions. In trying to find these strengths and/or weaknesses a practical stance will be taken;
it will be possible to find them when carrying out the regular procedure in territorial sea delimitation. Before starting any process of territorial sea delimitation, first, the relevant coastlines, baselines, the pertinent base points and other relevant points that are needed when calculating the median line need to be determined. Then the three steps in territorial sea delimitation are to be followed.64 After the drawing of a provisional median line based on the principle of equidistance, it is the next step to consider whether by reason of historic title or
59 Dinter, S. van, p. 10.
60 United Nations Convention on the Law of the Sea (1982), Article 15.
61 Khan, D.E., p. 423.
62 Ibid, p. 423.
63 Broek, J. van den, p. 494.
64 Qatar v. Bahrain, ICJ, The Hague, 16 March 2001, para. 176, 280, 281.
special circumstances the final delimitation should be different from or at variance with this median line.65
Figure 3: portraying the relevant lines in the Ems-Dollard.66
Part III: Delimitation
Chapter 6: Baselines
In determining the boundaries of coastal states’ maritime zones, it is necessary to first of all establish from what points on the coast the various outer limits are to be measured. This is the function of the baselines. The baseline is furthermore important because in the case of equidistance delimitation between neighbouring states the line of equidistance is calculated
65 Degan, V-D. Consolidation of Legal Principles on Maritime Delimitation: Implications for the Dispute between Slovenia and Croatia in the North Adriatic. Chinese Journal of International Law. Vol. 6 (2007), p.
611.
66 Relevant claims en verdragen in de Eems-Dollard (English: Relevant claims and treaties in the Ems-Dollard), 2011. http://www.defensie.nl/marine/hydrografie/geodesie_en_getijden/zonegrenzen/noordzee (last visited on 15 August 2012).
from the baseline of each state.67 Baselines can be drawn in various manners. Normal baselines follow the low-water line along the coast and straight baselines are less dependent on the low-water line and follow geographical points in the general line of low-water marks.
Main condition for these baselines it is that, first, they “must be drawn so that they do not depart to any appreciable extent from the general direction of the coast”68 that, second, “they must be drawn so that the sea areas lying within these lines are sufficiently closely linked to the land domain to be subject to the regime of internal waters”69 and, third, that “it is legitimate to take into account certain economic interests peculiar to a region”.70
The Netherlands formulated in 1985 that, in conformity with Article 2 of the LOS Convention, its territorial sea is calculated seawards from the baseline. It was confirmed that the baseline is the official demarcation line between the inland waters and the territorial sea71 and is constructed based on points on “the low-water line along the coast”72 with the condition that “where a naturally formed elevation of the seabed which is covered at high tide but dry at low tide lies within the distance from the low-water line”73 the baseline follows “the closest point on the low-water line of such an elevation”.74 This low-water line “shall be defined as the line indicating the depth of 0 metres”.75 Because of these formulations baselines can be drawn in a wide variety of geographical circumstances.76 The Dutch baseline is drawn through a number of confirmed points, starting in the southwest of the Dutch territories at the intersection of the land boundary between the Netherlands and Belgium with the low-water line, and ending in the northeast at point Great Cape on Rottumeroog.77 The Dutch baselines are based on a combination of normal and straight baselines. The last part of these baselines is based on the direction of the last part of Germany’s straight baselines.
Even though the last set geographical coordinate officially given by the Netherlands is already located at Rottumeroog, this does not mean that the Netherlands believes that its baselines stop here. Rottumeroog is the last land point of the low-water line along the coast before
67 Churchill, R.R., p. 31.
68 Ibid, p. 35.
69 Ibid, p. 35.
70 Ibid, p. 35.
71 Netherlands Territorial Sea (Demarcation) Act (1985), Article 2(1).
72 Ibid, article 1(1).
73 Ibid, article 1(1).
74 Ibid, article 1(1).
75 Ibid, article 1(2).
76 Churchill, R.R., p. 32.
77 Netherlands Territorial Sea (Demarcation) Act (1985), Article 2(2): no coordinates specified.
entering German territory. The straight baseline continues eastwards with its official end unknown. At this point, the Dutch claim enters the disputed area covered by the Ems-Dollard- Treaty and the baseline is deemed to be formed by a straight line between the Great Cape on Rottumeroog, situated in Dutch territory, and the large lighthouse at Borkum, situated in German territory, insofar as the said line remains within Netherlands territory.78 Somewhere between these points the official end of the Dutch baseline should be located.
Closing lines
The baseline between Rottumeroog and Borkum is considered to be a baseline closing the mouth of the Ems-Dollard. It is necessary to clarify which provision of the LOS Convention regulates the drawing of baselines over internal waters flowing into the sea. Normally, situations in which baselines run across rivers and their mouths fall under a relevant provision set out in Article 9 of the convention. In these cases, “if a river flows directly into the sea, the baseline shall be a straight line across the mouth of the river between points on the low-tide line of its banks”79 and “no limit is placed on the length of such a river closing line”.80 It should however be stressed that this article only applies “to rivers that flow ‘directly’ into the sea”.81 The Ems-Dollard, similar to many other rivers, does actually not flow directly into the territorial sea. Rivers flowing indirectly into the sea via their multiple arms or other course variations are called estuaries. In some situations, however, it may be difficult to exactly define an estuary and to distinguish between rivers entering the sea directly and rivers entering the sea via an estuary.82
Nevertheless, if a river forms an estuary it does not fall under Article 9 of the LOS Convention. Normally, the drawing of baselines across estuaries is governed by Article 10 of the convention, which relates to baselines across juridical bays.83 What this means for the baselines across the Ems-Dollard is not directly clear. Article 10 of the convention begins with setting out a criterion under which the Ems-Dollard would initially not fall under this provision. Because “this article relates only to bays the coasts of which belong to a single
78 Netherlands Territorial Sea (Demarcation) Act (1985), article 3(2).
79 Churchill, R.R., p. 46.
80 Ibid, p. 46.
81 Ibid, p. 39.
82 Ibid, p. 39.
83 Ibid, p. 39.
State”84, it is problematic to argue that the estuary of the Ems-Dollard is to be closed by baselines in a similar manner as juridical bays are. The Ems-Dollard has coasts that belong not to one single state, but to two states, being the Netherlands and Germany. This problematic situation appears to be solved with the exception that “the foregoing provisions do not apply (…) in any case where the system of straight baselines provided for in Article 7 is applied”85. Article 7 of the convention relates to straight baselines and since the Netherlands refer to the baseline across the estuary as a baseline that “shall be a straight line across the mouth of the river”86, it is assumed that the baseline between Rottumeroog and Borkum was to be drawn as a straight baseline. The Netherlands refers to the baseline over the estuary as a
“river closing line”87, which thereby creates the boundary between the territorial sea and the internal waters.
Similarly, Germany uses both normal and straight baselines and formulated that the outer limit of the territorial sea in the North Sea shall be “running at a distance of 12 miles, measured from the lower-water line and the straight baselines, as appropriate”.88 For both the Netherlands and Germany tides play an important role for drawing a baseline. Germany’s baseline follows therefore not only the low-water mark line between islands adjacent to the coast but also follows banks that lie dry at low tide89. In a direction towards the Netherlands, the German baselines run from the intersection of the land border between Denmark and Germany along the coastlines to the island Juist.90 The open waters between the German islands and the mouths of the rivers Weser and Elbe are crossed by straight baselines.
Delimitation of internal waters does however take place at the place where the character of river streams is lost and sea-like conditions prevail. Almost none of these river-closing lines do play a role in drawing Germany’s baseline. In that aspect the Ems-Dollard is an exception.91
84 United Nations Convention on the Law of the Sea (1982), Article 10(1).
85 Ibid, Article 10(6).
86 Churchill, R.R., p. 46.
87 Ibid, p. 46.
88 Proclamation of 11 November 1994 by the Government of the Federal Republic of Germany concerning the extension of the breadth of the German territorial sea (1994), Article 1.
89 Khan, D.E., pp. 50-51.
90 Proclamation of 11 November 1994 by the Government of the Federal Republic of Germany concerning the extension of the breadth of the German territorial sea (1994), Article 1: the baseline starts at point 53 41 24 N 7 04 02 E at the island Juist and runs to the intersection of the boundary between Germany and Denmark at point 54 04 14 N 8 23 30 E.
91 Khan, D.E., p. 51: only for the river Trave the closing line and baseline are the same.
The German baselines, as said before, run from the intersection of the land border between Denmark and Germany along the coastline to the island Juist, which is after Borkum the second closest island to Dutch territories. Borkum is also marked as a point on Germany’s baselines but is not connected to the rest of the points of the official baselines. Germany probably decided not to connect these base points due to the fact that Borkum and Juist are both located too far from the disputed waters of the Ems-Dollard and official delimitation is still absent. Moreover, the straight baseline ends at the western point of Juist and an official German line to be connected to the official Dutch straight line between Rottumeroog and Borkum does therefore not exist. It can nevertheless be said that the drawing of a baseline between Juist and Borkum would not be disputed by the Netherlands since it falls far outside the area falling under the treaties regulating the Ems-Dollard. The Ems-Dollard is closed by straight baselines drawn approximately 10 miles from the mainland more or less consistent with the straight baseline proposed by the Netherlands and seems to be fulfilling the criteria to qualify as a straight baseline.92
It is important that both countries use a similar method of drawing a baseline closing the mouth of the Ems-Dollard, because this will make it easier to establish the point where the land border between Germany and the Netherlands would intersect and the territorial sea delimitation line would start. This baseline forms the boundary between internal waters and territorial sea and its course seems not to be disputed by either the Netherlands or Germany.
What has been disputed is the exact location of the base point at which the land border between the Netherlands and Germany intersect. Agreement on the exact location thereof is needed to establish the starting point of delimitation. In the Dutch opinion this exact location is to be calculated based on where a land boundary based on the thalweg-principle would intersect with the baseline. Germany believes that by reasoning of historic title this location is calculated by following the low-tide line along the Dutch coast until the point where this line meets the baseline. This location is more difficult to establish when sovereignty over this base point is not in dispute.93
Chapter 7: Equidistance
92 Khan, D.E., p. 52.
93 Guyana v. Suriname, Permanent Court of Arbitration, The Hague, 17 September 2007, para. 301.
Previous territorial sea delimitation disputes indicated that the first step to start the process of delimitation is to draw a provisional median line.94 If both States cannot agree on the basepoints it is, however, difficult to draw one provisional median line. In some delimitation cases it even has been impossible to plot an equidistance line because of the absence of viable basepoints.95 Territorial sea delimitation should however “not be based solely on the choice of basepoints made by one of those parties for its baseline from which the breadth of its territorial sea is measured”.96 International courts and tribunals have the opportunity to establish the correct baselines themselves in cases of disagreement between the parties.
Equidistance and median lines have gotten a central place in maritime boundary delimitation law and practice. The equidistance line is important since neither of the disputing states is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line, every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the states is measured. The principle of equidistance may be employed in conformity with Article 15 of the LOS Convention, subject to historic title, special circumstances and parties reaching agreement on methods at variance with the aforementioned principles.
Nevertheless, it is sometimes not directly possible to create a median line. The objectivity behind the drawing of the equidistance line can be limited by technical reasons.97 The equidistance method is mentioned in the LOS Convention but is, based on ICJ jurisprudence, evidently not the only method to come to delimitation.98 Other methods, although sometimes unconventional, may considered to be on equal footing with the equidistance method. The perpendicular method, for example, is based on straight lines following the general direction of the coasts. Also variations of equidistance such as methods based on parallels, meridians, enclaves etcetera can be applied in delimitation. It has however consistently been made clear that equidistance acquired a privileged status in jurisprudence.99
Without an agreed location of the exact starting point of an equidistance line for the territorial sea, multiple starting points should be considered. Following the Dutch view on the course of the land border, the equidistance line should start running from the base point where the
94 Guyana v. Suriname, para. 303.
95 Khan, D.E., p. 402.
96 Romania v. Ukraine, ICJ, The Hague, 3 February 2009, para. 137.
97 Dewaelsche, L., De rol van olie en gas in delimitatie, 1st edition. Gent, (University Press) 2010, p. 35.
98 Ibid, p. 35.
99 Ibid, p. 35.
internal thalweg-line crosses the baseline. Following the German view on the course of the land border, the equidistance line should start running from the base point where the low-tide line along the Dutch shores crosses the baseline.
Chapter 8: Historic Title
Germany clearly opposes the Dutch standpoint that the territorial sea delimitation should solely be based on equidistance. It argues that the disputed waters should be delimited by reason of historic title and special circumstance. Germany does not believe that the principle of equidistance prevails over reasoning by historic title and special circumstances. Both the Netherlands and Germany agree that the law applicable to the delimitation of the territorial sea is provided by Article 15 of the LOS Convention.100 The states’ conflicting standpoints indicate that there is no agreement on the execution of Article 15 of the convention. It follows from this article that before the equidistance principle is applied, consideration should be given to the possible existence of historic title relevant to the area to be delimited.101 It has been made clear that Germany has invoked the existence of such a right in the territorial sea delimitation. It claims the existence of this right for both the land border in the internal waters and delimitation line in the territorial sea. Germany supports its claim by referring to a series of historic treaties that would have given exclusive territorial sovereignty over the relevant waters.
The exact definition of historic titles is somewhat unclear. To assess whether Germany’s reasoning by historic title has any legal relevance it is necessary to first establish a clear definition of historic title. Unfortunately, the content of the meaning of historic title is not clarified any further by Article 15 or other provisions of the LOS Convention. The absence of a clear definition makes historic title appear somewhat vague and obscure, but the existing jurisprudence can partly help clarify its content.102 Nevertheless, the importance of reasoning by historic title in maritime delimitation has been acknowledged in Tunisia v. Lybia. It was concluded, “historic titles must enjoy respect and be preserved as they have always been by long usage”.103 The logic behind this seems to be that claims are not to be made if they had no
100 United Nations Convention on the Law of the Sea (1982), Article 15.
101 Ibid, Article 15: “or other special circumstances”.
102 Vukas, B., The Law of the Sea: Selected Writings, 1st edition. Leiden, (Martinus Nijhoff Publishers) 2004, p.
86.
103 Tanaka, Y., Predictability and Flexibility in the Law of Maritime Delimitation, 1st edition. Oxford, (Hart Publishing) 2006, p. 300.
